Donor Conception: What could go wrong?

Deciding to conceive a much-wanted child through fertility treatment with donor eggs or sperm can raise all sorts of issues.

Effective management of the legal and wider issues and risks will depend upon the type of donation involved (known donor, anonymous or identity-release donor). It will also depend upon marital status as well as the circumstances of conception (whether at a UK licensed fertility clinic, overseas or on a private basis at home).

Moreover, it is important to consider and navigate evolving issues around donor information and identity issues for donor-conceived children and families.

Does it matter what type of donor I use?

Yes, the type of donor you select will have different legal issues and implications in practice. For example, if you decide to work with a known donor (e.g. a friend, acquaintance or someone you meet online) you should put in place a bespoke written known donor agreement in advance of conception.

This is because you will have direct contact with the donor and this can increase the chances of issues or a dispute arising about the status, rights and role of the donor in the child’s life further down the line.

A written known donor agreement should be drafted by a specialist fertility and family lawyer at the outset, tailored to your individual situation and all parties should obtain expert legal advice as to its meaning and effect before signing it.

Its purpose is to clearly set out the law and legal status of the parties, confirm the circumstances of conception, manage expectations, aid communication and set ground rules as to what is agreed in practice to minimise the risk of unwelcome surprises and disputes.

Whilst a bespoke known donor agreement is not one hundred percent binding in law, and the English Court will make a fact-based decision in the best interests of the child in the event of a dispute, it will be helpful contemporaneous evidence.

If you do not have an expertly drafted bespoke written known donor agreement in place, it can create ambiguity and confusion. It can also leave parties in a situation where it is one person’s version of events against the other person’s version and increase the chances of a lengthy, complex and costly legal battle about parentage and parental responsibility, contact and upbringing of a donor-conceived child.

If you decide to use a known donor or a UK identity release donor through a UK licensed fertility clinic, you should also ensure that you understand the legal issues associated with the consent, storage and use of donor gametes in fertility treatment. You should make sure that you understand when and in what circumstances consent could be limited, changed or withdrawn for the use of those donor gametes in treatment and the impact of this in practice.

Do the circumstances of conception and my marital status matter?

Yes, the circumstances of conception and marital status matter from a legal perspective. For example, if you are a single woman conceiving artificially on a privately arranged basis with donor sperm (i.e. not through a UK licensed fertility clinic) then the sperm donor will be your child’s legal as well as biological father under English law.

By way of a further example, marital status can complicate access to fertility treatment and legal parentage for a child in situations where a fertility patient is married and has separated (but not yet divorced) their spouse.

This can raise complex legal issues because English assisted reproduction law states that the husband of a woman who conceives artificially with donor sperm will be the child’s legal father unless he did not consent to her artificial conception.

Expert legal advice and assistance should be obtained in this instance to understand the issues and implications arising in individual cases and what steps can be taken under English law to mitigate this.

Do I need to think about donor information and identity issues?

It is also important to consider and manage issues relating to donor information and identity issues for your donor-conceived child. If you decide to conceive abroad with an anonymous donor, your child will not be legally entitled to identifying information about their donor (unlike in the UK which currently has a donor identity-release system). This could cause issues if you or your child subsequently have a change of heart.

Direct-to-consumer DNA testing can also undermine legal frameworks governing donor information creating unforeseen issues and outcomes because genetic relatives and donors can be traced with increasing ease. They can include unexpected discoveries about conception, maternity and paternity, unknown siblings and relatives.

They can also uncover family secrets and stories of loss and infidelity, as well as IVF mix-ups, fertility fraud, donor conception and adoption that can upend the lives of individuals and families. In turn, these discoveries can result in complex legal disputes about parentage, birth certificates, contact and upbringing of a child, child maintenance and inheritance, negligence as well as evolving issues about the use of personal genetic information.

Should I get fertility and family law advice?

Yes, it is advisable to obtain specialist fertility and family law advice because conception by artificial means with donor eggs or sperm raises complex legal and wider issues. Bespoke expert fertility and family law advice helps you effectively and efficiently project manage your family-building journey.

It enables you to identify, understand and proactively navigate a whole range of legal issues and risks, place your family-building on a firm footing and get the best outcome. In doing so, it can:

• Help access fertility treatment with donor conception at a UK licensed fertility clinic.
• Help you understand and proactively manage the legal issues associated with donor
  conception (e.g. preparation of a written known donor agreement).
• Resolve difficulties or a dispute with a known donor about legal status, care and upbringing
  of a donor conceived child.
• Navigate issues associated with a direct-to-consumer DNA test (e.g. issues associated with
  identification and trace of donors and genetic relatives).
• Provide expert donor conception law and fertility treatment law advice to support a claim
  for damages following medical negligence.

Please get in touch

Please note that this article is for general information purposes only and should not be construed as legal advice. You should always obtain specialist tailored legal advice in relation to your situation. If you would like specialist fertility, donor conception and family law advice and assistance you may contact me through my bloss profile.

Articles and information provided by Louisa Ghevaert are for general information purposes only and should not be construed as legal advice. You should always obtain specialist tailored legal advice in relation to your individual situation.